Wednesday, May 6, 2009

Tun Salleh Abas- man behind the controversy

Salleh was born in Besut, Terengganu. He left in 1949 for the United Kingdom, where he graduated with a degree in law from the University of Wales, Aberystwyth. In 1957 when he returned, he joined the legal service. He then served in Kota Baru, Kelantan as a magistrate. Soon after independence that same year, he was transferred to the national capital of Kuala Lumpur, where he served as Deputy Public Prosecutor. He then returned to Britain to obtain a Master's degree in international law and constitution at the University of London. He returned in 1962, upon which he was appointed state legal adviser and Deputy Public Prosecutor for both Negeri Sembilan and Melaka. He returned to Kuala Lumpur a year later, and served in a variety of posts under the Attorney-General, culminating in an appointment as Solicitor-General.[1]At the age of 50, he wanted to retire, but was persuaded otherwise by then Lord President of the Federal Court, Tun Suffian Hashim. Salleh was appointed as a Federal Court judge instead. Although the work bored him, he continued. When Suffian retired in 1982 and was replaced by Raja Azlan Shah, Salleh became Chief Judge of Malaya. However, within two years, the Sultan of Perak died. Raja Azlan was forced to resign to ascend the throne, and Salleh became Lord President in 1984.[1]During Salleh's tenure, the Federal Court became officially the highest court in the land. Previously, its decisions could have been appealed to the British Privy Council, but due to concern over this colonial legacy, the link was officially cut. Salleh would later express regret over this, as he believed he might not have been fired had the link to the Privy Council been maintained.[1] In 1985, the Federal Court was renamed the Supreme Court.

Constitutional Crisis

In 1987, elections for the leadership of the United Malays National Organisation (UMNO) were held. UMNO was the leader of the governing Barisan Nasional (BN) coalition, and its President would automatically become Prime Minister of Malaysia. Tengku Razaleigh Hamzah challenged the incumbent UMNO President and Prime Minister Mahathir bin Mohamad, and was widely touted to win the Presidency. However, Mahathir won 761 votes to Razaleigh's 718, and remained President. Many of Razaleigh's supporters refused to accept this, and argued that the election was tainted.[2] 12 UMNO members filed suit in the High Court, attempting to get a court order for new elections. As part of their evidence, they presented claims that 78 of the 1,479 delegates eligible to vote in the elections were illegal, and that several documents involved in the election had been tampered with. Later, one of the 12 plaintiffs withdrew from the suit. Although Razaleigh was not involved in the case, it was widely believed he had been funding and supporting the suit.[3]On September 30, 1987, the High Court gave the parties two weeks to reach a negotiated settlement. A "Unity Panel" was formed to negotiate between the Mahathir and Razaleigh camps, but it soon appeared the differences were interminable. Razaleigh's supporters wanted new elections held, while Mahathir's supporters insisted that the elections stand and that Razaleigh's camp accept a compromise "face-saving" solution. On October 19, the plaintiffs announced the suit would continue.[4]Mahathir, who had never been fond of the judiciary, began making heated statements about it at this time. Mahathir declared, "The judiciary says, 'Although you passed a law with a certain thing in mind, we think that your mind is wrong, and we want to give our interpretation.' If we disagree, the courts will say, 'We will interpret your disagreement.' ... We know exactly what we want to do, but once we do it, it is interpreted in a different way." Mahathir also lambasted "black sheep ... who want to be ... fiercely independent" and play to public opinion. Soon after, nine judges sitting on the High Court were reassigned to different divisions; Justice Harun Hashim, who presided over the UMNO case, was transferred from appellate and special powers cases to commercial crimes. However, because the UMNO case was already in progress, his transfer would not take effect until the case closed. Harun later ruled that under the evidence presented, it was clear several UMNO delegates had come from unregistered branches of the party. In line with the law, he declared he was forced to declare UMNO an illegal society, and thereby dismissed the case of the plaintiffs. Mahathir soon formed a new party, UMNO Baru (New UMNO), to replace UMNO. Within a year, the suffix "Baru" was dropped, making it just plain "UMNO".[5]Mahathir was upset with the judiciary's increasing independence, and in 1988, the government tabled a bill in Parliament to amend Articles 121 and 145 of the Constitution. These amendments disvested the courts of the "judicial power of the Federation", giving them only such power as Parliament might grant them. The Attorney-General was also empowered to determine the venues in which cases would be heard.[6]At this point, Salleh Abas, who was then Lord President of the Supreme Court, began making strong statements about defending the autonomy of the judiciary. However, he did not name Mahathir, and spoke in rather general terms. However, Salleh was pressured by his fellow judges into taking stronger action. He convened a meeting of all 20 federal judges in the national capital of Kuala Lumpur. They decided not to directly challenge Mahathir, and instead address a confidential letter to the Yang di-Pertuan Agong (King) and the rulers of the various states. The letter stated, "All of us are disappointed with the various comments and accusations made by the Honourable Prime Minister against the Judiciary, not only outside but within the Parliament." However, instead of calling for any direct action to be taken, the letter only stated the judges' "hope that all those unfounded accusations will be stopped".[7]Ironically, the then Yang di-Pertuan Agong (King of Malaysia), who was also the Sultan of Johor — Sultan Mahmood Iskandar Shah —, who as heir apparent to the Johor throne had been prosecuted by Salleh Abas when he was Public Prosecutor. The Sultan was eventually convicted of homicide and sentenced to six months in jail. It is not known what the King did upon receipt of the letter, but it appears he informed Mahathir, and that they agreed to take disciplinary action against Salleh Abas.Salleh, who had gone overseas soon after the letter was sent, was summoned by Mahathir upon his return. Salleh later claimed that at the meeting, Mahathir accused him of bias in the UMNO case, and demanded his resignation. Salleh was also immediately suspended from his post as Lord President. Although Salleh initially agreed, when he was later informed that his suspension would be backdated so as to nullify some of his earlier actions in then pending cases such as the UMNO case, he withdrew his resignation. The government then initiated impeachment proceedings against Salleh.[8] Salleh would later claim that the government attempted to bribe him to resign.[9]Under the Constitution, judges are impeached by a special tribunal of judges, appointed by the government. Four Malaysian judges, a Sri Lankan judge, and a Singaporean judge were appointed to form a six-member tribunal that would hear the case. The tribunal chairman was Justice Abdul Hamid Omar, who was appointed as acting Lord President due to Salleh's suspension. Salleh was officially charged with writing "a letter to the Agong without approval of all judges in the country", displaying "bias and prejudice" against the government, and seeking "to undermine public confidence in the government's administration". In addition, the government took issue with a ruling Salleh had made in a case involving a minor's religion, and a statement he had made to the media after his suspension, which allegedly was "calculated to politicise the issues and further discredit the government".[8]Salleh was represented by Anthony Lester, QC, who objected to the tribunal's composition. It was argued Abdul Hamid had a vested interest in the case's outcome, since if Salleh was impeached, he would remain Lord President. It was also claimed that the tribunal was improperly constituted because two of the judges were relatively junior, and that the two foreign judges were from countries not noted for judicial independence. Salleh demanded to be tried by peers of equal standing — retired Lord Presidents, if need be. He also demanded that the tribunal make its hearings public. All of these claims were rejected by the tribunal, and Salleh withdrew from the proceedings.[10]Instead, Salleh asked the Supreme Court to stay the proceedings because of the tribunal's alleged improper constitution and because the King had been "wrongfully advised". The Supreme Court, in an emergency session, unanimously ruled that the proceedings be stayed. Four days later, the Yang di-Pertuan Agong suspended the five Supreme Court judges who had issued the order, on Mahathir's advice. The government announced it would now attempt to impeach those five judges as well for "gross misbehaviour" and conspiring "to make the order". There were now only four judges on the Supreme Court, two of them also sitting on the tribunal. The government appointed new judges to fill the void, who refused to hear any further motions by Salleh Abas. The tribunal eventually found Salleh guilty, and he was officially relieved of his position. Of the five judges who had supported him, two were convicted, and the other three were acquitted.[11]Tun Salleh's in the news again after 20 years

TWENTY years after being sacked as Lord President, Tun Salleh Abas makes the headlines again.Minister in the Prime Minister’s Department and de facto law minister Datuk Zaid Ibrahim proposed last Saturday that the Government issue an apology to Salleh.

Brought in to reform the judiciary

Since then, many have joined the fray. Opposition leader Datin Seri Dr Wan Azizah Wan Ismail took the call a step further. She suggested the formation of an independent commission to restore the judiciary’s integrity.Wan Azizah, the president of PKR, said Zaid's proposal that the government issue the apology was inadequate.

DAP national chairman Karpal Singh, called instead for Dr Mahathir to apologise to Salleh and the other two judges implicated in the crisis.

He said that calling for the present government under Datuk Seri Abdullah Ahmad Badawi to apologise was not a step in the right direction.

“Dr Mahathir should apologise to the judges implicated in the 1988 judicial crisis,” said Karpal Singh.“It is not the present administration which convened those tribunals. The two tribunals in 1988 were initiated by Dr Mahathir. So, he should apologise,” said the Bukit Gelugor MP.

On Wednesday, however, the new Cabinet decided not to adopt Zaid's proposal.

Dr Mahathir, in a letter, hit out at Zaid saying that “the person asking that the government apologise for what happened to Tun Salleh Abbas may have forgotten that, as president of the Muslim Lawyers Association, he (Zaid) fully supported the action that was taken...Now he wants to be more correct than correct. I wonder why.”

But this time, the matter was not laid to rest immediately, many still think something should be done to appease the majority.

Sarawak lawyer George Lo was quoted in the Borneo Post yesterday as saying the official apology would be a giant leap for the government.

“Let’s get our priorities right. An official apology is good. It starts the process of healing and redeems the honour for the three judges.“Unfortunately, with all the hue and cry it has generated, the apology looks like an uphill task now. But let’s keep our eye on the ball,” Lo said.

He added that Zaid was brought in to reform the judiciary and ensure that the courts were truly independent.“Let’s not be distracted from that ultimate goal,” he said.Well-known lawyer Malik Imtiaz Sarwar, is one of those who viewed the proposal for a government apology as a positive move.

“It is a step in the right direction. The government must recognise that the attack on the judiciary left it vulnerable to influences that have continuously undermined the institution since.“Scandals like the Lingam video have their roots in the Tun Salleh affair. A process of reconciliation is vital to the healing of the judiciary,” said Malik, who is also the National Human Rights Society (Hakam) president.

Bar president Ambiga Sreenevasan said: “It is high time to do such things, which had been there for some 20 years and the minister’s move is absolutely correct. We wholeheartedly support him.“Everybody knows that the 1988 judicial crisis was all a sham. Might as well do the right thing now. What had happened then was an executive interference in the judiciary,” she said.

There are, of course, others who think that the apology should not be made due to its far-reaching effect.Whatever the stand is, one thing is certain –the call has drawn more dynamic public debates and the fact that the suggestion was made by a minister in the ruling Government has made all the difference

Former Lord President dwells on the judiciary crisis of 1988By CHELSEA L.Y. NG

FORMER Lord President Tun Salleh Abas is the embodiment of modesty. After making headlines when he was sacked from the judicial system in 1988, he has moved on to new chapters of his life.

For years now, he has drawn great satisfaction in literally eating the fruits of his labour. The 79-year-old spends a great deal of his time toiling in his dusun (fruit orchard) in Besut while at the same time keeping abreast of developments outside the plantation.

Tun Salleh: ‘I hardly practise nowadays. I am a farmer now’ “I hardly practise nowadays. I am a farmer now,” Salleh said in between chuckles.“I have bananas, dukongs, durians in my dusun. Can't really make money because the fertilisers are expensive. But it's rewarding to eat the fruits you plant yourself. Do drop by during the fruit season in July and August,” said the tanned and be-spectacled former top judge.

When he is not enjoying himself in the four-acre orchard, which he inherited from his late father, Salleh will be taking life easy at the back of his house in Kuala Terengganu.“I have six children (including one who has passed away) and 25 grandchildren. But they are all not here.“I live in the Kuala Terengganu house with my wife. It’s quiet but I enjoy my wife’s company.”His complacency evaporated the moment we broached the 1988 judiciary crisis which led to his dismissal as Lord President.

When asked to comment on the proposal by Minister in the Prime Minister's Department Datuk Zaid Ibrahim that the government apologised to him and the two judges who were sacked in the 1988 judicial crisis, Salleh responded in a calm voice.

“If the apology is forthcoming, I welcome it. In fact, I welcome it the most. I wouldn't want to comment any further before that happens,” said the spirited old man.Born to a sailor and village trader in Besut, Salleh joined the judicial and legal service in 1957 upon his return from the United Kingdom with a law degree.

He ascended to the position of Lord President in 1984 and had presided over several high profile cases before he was dismissed for alleged misconduct through a tribunal in August 1988.Two Supreme Court judges who had earlier granted him an injunction order against the tribunal were also dismissed.

After the bitter episode, Salleh started his own legal practice.His tenacity is greater than a cat on a hot tin roof, a senior lawyer said.Another told of an incident whereby the diminutive but determined Salleh had gone to the courts wheelchair-bound while being put on drips.

He had apparently been summoned to carry on with his case by the judges who were not convinced of his health condition.“That is one reason why I was reluctant to appear in court after that,” said Salleh about the incident.“I was scheduled for a prostate surgery that day and I had to ask the doctor to postpone the operation because the Court of Appeal insisted on my arguing in court that day. They refused to grant a postponement of the appeal hearing,” Salleh recalled.

“I was wheeled into the courtroom with the urine bag and drip bag still attached. I argued for four hours that day.“I even threw a book at the judges out of frustration. In the end, the court threw out the appeal. I lost not because it was not a good case, but because of injustice,” he added.He quickly brushed aside the painful memories and spoke of the sweeter ones.“Do you know that I was the first prosecutor in the country who introduced the phrase 'crime of passion' through a murder case in 1957?“And who coined the phrase 'toothless bulldog' in the Datuk Harun Idris case?” he asked with a cheeky laugh.

Apart from his love for law, Salleh also dabbled with politics.He contested in the 1995 general election for the Lembah Pantai parliamentary constituency under the Semangat 46 ticket and lost.

In the 1999 general election, he was elected state assemblyman for Jertih in Terengganu on a PAS ticket and was made an Exco member.

In 2004, he did not run for elections due to poor health. In September 2006, the Bar Council called for an impartial review of the 1988 judicial crisis. That same year, Salleh, who was then 77 years old, broke his 18-year silence to echo the Bar's proposal.

In a statement issued in response to the Bar's call, Salleh said that on May 27, 1988, he was summoned to the Prime Minister's Office and told by Tun Dr Mahathir Mohamad to step down because he had been biased in the discharge of his judicial duties.

Tun Salleh said that he refused to resign and was then threatened with dismissal.The former judge believed that this had something to do with an impending case involving Umno.However, Dr Mahathir responded to the statement the same day stating that he had asked Tun Salleh to step down to avoid a scandal.

The matter died down just as soon as it was brought up. Nothing happened after that...until last Saturday when it was raised by a new Cabinet minister.

Cronology of Event

TUN Salleh Abas became the Solicitor-General in 1963.

At 50, was appointed as Federal Court judge.

The Lord President Tun Suffian Hashim retired in 1982 and was replaced by the then Raja Azlan Shah but within two years, Raja Azlan became the Sultan of Perak and Salleh became Lord President in 1984.

In 1987, elections for the leadership of Umno were held and Tengku Razaleigh Hamzah challenged the incumbent Umno president and prime minister Datuk Seri Dr Mahathir Mohamad (now Tun) and was widely touted to win the presidency. However, Dr Mahathir won and remained president.

The many supporters of Tengku Razaleigh were not satisfied with the result and attempted to get a court order for new elections.

In the meantime, Salleh made general but strong statements about defending the independence of the judiciary. He also convened a meeting of all 20 federal judges in Kuala Lumpur, and they decided to send a letter to the King stating that they were disappointed with comments made by the prime minister about the judiciary. They asked that the unfounded accusations be stopped.

Two months later, Salleh was suspended and High Court of Malaya Chief Justice Tan Sri Abdul Hamid Omar was appointed acting Lord President. Salleh was brought before a tribunal for misconduct. In response, he filed a suit in the High Court challenging the constitutionality of the tribunal. He also applied for an interim stay against the tribunal but it was denied.

Five judges of the Supreme Court convened and granted Salleh an interlocutory (interim) order against the tribunal.

The order was later set aside and in August 1988, Salleh was officially removed from the post of Lord President.

In October, Wan Sulaiman and Seah were sacked while the three other judges were reinstated.

Friday April 11, 2008

No apology for judges but Government to make amends

PUTRAJAYA: The Government will try to make amends to former Lord President Tun Salleh Abas and two other judges sacked in the 1988 judicial crisis but will not apologise to them.Prime Minister Datuk Seri Abdullah Ahmad Badawi said: “I do not see why we should apologise. It does not arise.”

He said it was more important for the Government to look at ways to make amends to the victims of the crisis.The Government, he said, was studying the matter, adding that a decision would be made later after a Cabinet paper on it was submitted.

Last month, Minister in the Prime Minister’s Department Datuk Mohd Zaid Ibrahim proposed that the Government apologise to those victimised by the judicial crisis.

Zaid was quoted as saying that although the crisis happened 20 years ago, an apology was necessary as it was wrongly handled and that the then Lord President’s sacking was inappropriate.

On the call for judicial reforms by the Raja Muda of Perak Raja Dr Nazrin Shah, Abdullah said the Cabinet would make a decision on the matter after the working paper was submitted.

Admitting that the subject was significant, the Prime Minister said the Government did not work on it earlier as planned in the 2004 election manifesto as they had to deal with other issues like the development of the country’s economy.

Abdullah, who chaired a board meeting of Khazanah Nasional Bhd yesterday morning, said the Cabinet had decided to formulate a Food Security Policy as a mechanism to ensure that the country had adequate food supply.

Part of the policy was to set up a food stockpile that had been announced earlier, he said, adding that government-linked corporations with large acreage of land could also plant vegetables, fruits and cereals to meet the food demand.

Abdullah also said the Cabinet discussed the issue of having more locals take up jobs at federal departments in Sabah and Sarawak, adding that more folks from the two states would be taken in to work in departments in the peninsula.

On the fate of the Sabah Federal Development Department, which was set up when the state was under the rule of the Opposition many years ago, Abdullah said its role must be reviewed as its functions overlapped that of other federal departments.

Now, while i'm still in KT, i hope that i have the opportunity to talk face to face with him...Actually, i had met him before while Terengganu at that time under pressure of PRU last year...Still remember Datuk Seri Abdul Hadi Awang son, had been arrested for causing chaos in Rusila...Thats the moment i cant forget it anymore...very lucky..Alhamdulillah